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Thursday, April 26, 2007

Update: Sexual Harassment Claim Allowed to Proceed

When Melissa Jennings, a University of North Carolina student, alleged that she had been continually sexually harassed by her soccer coach, Anson Dorrance, a divided panel of the Fourth Circuit Court of Appeals threw out her case without allowing her to present it to a jury. Well, this month the entire Fourth Circuit reversed that decision 8-2, reviving Jennings’ case. The majority included three judges nominated by President Bush and one nominated by President Reagan, as well as four Clinton nominees. Only George H.W. Bush-appointees Karen Williams (whom some believe to be a Supreme Court short-lister) and Paul Niemeyer dissented.

In overturning the Fourth Circuit panel – which had also included Judge Williams - the majority explained that, on a regular basis, “Dorrance bombarded players with crude questions and comments about their sexual activities and made comments about players’ bodies that portrayed them as sexual objects. In addition, Dorrance expressed (once within earshot of Jennings) his sexual fantasies about certain players, and he made, in plain view, inappropriate advances to another.”

Judge Niemeyer authored the dissenting opinion, arguing that Jennings’s claim was so weak that no jury could reasonably conclude that Coach Dorrance’s conduct was serious enough to prevent her from fully benefiting from the soccer program. Judge Niemeyer characterized the coach’s actions as mere “inappropriate” “violations of civility,” and argued that the majority wrongly “concluded that they created a severe and pervasive sexually hostile environment that denied Jennings access to the opportunities and benefits of the soccer program.”

However, the majority did not reach any such conclusion about the case; they simply said that there was enough evidence of sexual harassment to let a jury review that evidence to reach its own conclusion. According to the majority, Dorrance’s actions – by a middle-aged, male authority figure, directed at college-age women students – added up to “an abusive pattern that instilled fear and dread.” Given the seriousness and pervasiveness of Dorrance’s conduct, a jury could have found that Jennings suffered “severe emotional distress,” negatively impacting her participation in soccer. Mere “inappropriate” “violations of civility,” Judge Niemeyer? We think not.

Judge Niemeyer and Williams did not just minimize the seriousness of the conduct directed at Jennings and other women on the team. The dissent also used the fact that Jennings stayed on the team for three years and was distraught when she got cut as evidence that she could not possibly have been being harassed, ignoring the fact that UNC had the best soccer program in the country and that Jennings had given up a scholarship at another university to play there. This approach could undercut numerous sexual harassment claims where victims are forced to deal with harassment because they cannot leave school or work for financial or other reasons.

The Fourth Circuit is notoriously conservative, yet a majority of that court recognized how acutely this serious, sexually demeaning conduct can affect an individual. Given the Bush a dministration’s judicial selection track record, we doubt that they will knock Williams off of their list of potential Supreme Court nominees. However, we certainly hope that the Senate and the American people will take note of Williams’ extreme positions should she be nominated for a Supreme Court vacancy.

(For more explicit - and deeply troubling - details on the coach’s behavior, check out our earlier Full Court Press on the panel decision.)